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The Santa Fe is the luxurious double-track way to winterless California. In splen-
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The Santa Fe operates four other fine transcontinental trains daily-the California Limited, Navajo, Scout and Missionary.
Fred Harvey dining-car and station dining-room meals set the standard.
W. J. Black, Pass. Traf. Mgr. Santa Fe Sys. Lines
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The CENTURY MAGAZINE
RIMINAL justice to-day is enmeshed in a web of perjury. The pea in the old shell-game was often easier to find than is the truth in our courts of law. False swearing has become a daily, and therefore almost unremarked, episode.
PERJURY: A CRIME OR A PRIVILEGE
False Swearing Has Become a Daily Episode
CHARLES H. TUTTLE
UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK
The evil threatens more than the administration of justice. It is still true, as Lycurgus said to the Athenians, that "An oath is the bond that keeps the State together." And the law books of to-day still quote from a leading case: "No country can subsist a twelvemonth where an oath is thought not binding; for the want of it must necessarily dissolve society."
This truth is so traditional with the race, that in all ages and among all peoples, oath-taking has always been associated with serious affairs of State, either as a promise of certain behavior or as an assurance of sincerity of statement; and perjury has always been deemed to be a grave offense against both man and
Copyright, 1927, by THE CENTURY Co. All rights reserved.
God. The Siamese Buddhist in his oath, not content if he breaks it to call down on himself various kinds of death, desires also that he may afterward be cast into hell to go through innumerable tortures. Bearing false witness under sanction of the name of God, is the only offense separately condemned in two of the Ten Commandments. The inspired writers denounce lying as a sin more often than any other offense; and David in his haste, arraigned humanity on the charge that “All men are liars." Modern Christian civilization regards perjury both as a crime and as a sacrilege.
The origin of the oath as employed to-day is lost in antiquity. It is an expression of the religious instinct. Since men cannot perfectly search the heart, God is called upon to pass judgment on the honesty of the assertions, and to visit dishonesty with punishment. Among primitive peoples, the punishment was believed to follow in the form of disaster in the present life; but gradually,
with more enlightenment, the divine retribution came to be regarded as purely spiritual, and in order that there might be present and visible pains and penalties for the protection of society, perjury came to be classed as a crime. Its menace to the individual and the State has won it a high place among the law's severest punishments. The ancient Romans prevented a repetition of the offense by casting the perjurer from the Tarpeian Rock; and the law of Moses ordained that, "If the witness be a false witness, and hath testified falsely against his brother; then shall ye do unto him, as he had thought to have done unto his brother: . . . life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot." The old common law visited perjury with death; and in certain Southern States in the days of slavery, the ears of a negro convicted of false testimony, would be nailed to a post and then cut off as a prelude to a public flogging.
Only last year, Mr. Justice William Harman Black of the Supreme Court of the State of New York, and formerly an assistant district attorney, suggested that the revival of the death penalty be considered and urged that every convicted perjurer forfeit his property to the State and be deprived of the right of inheritance. To-day, however, because of the humane temper of the age, such severe measures would defeat themselves. Juries would not convict, and prosecution would soon be sur
rounded in the interest of the accused, with technicalities even more difficult than those which from hardier days still survive in the law. It is not, therefore, by adding
cruelty to punishment that modern society should or could protect itself against the contagion of perjury now sweeping through our jurisprudence. As to the reality of the peril there is no doubt.
On March I, of this year, Magistrate Joseph E. Corrigan of New York City, at a hearing before the Judiciary Committees of the Legislature, said that perjury was committed in ninety per cent of all criminal cases tried in the city's courts, on one side or the other. On the same occasion, Mr. Justice Kernochan of the Court of Special Sessions in New York City, said: “Perjury is one of the most common crimes committed in this jurisdiction." Justice William P. Wiener of the Municipal Court of the City of New York, recently added his testimony: "My brief experience in two kinds of courts, civil and criminal, causes me to believe that men and women will perjure themselves much more freely for a few dollars than they will where a man's liberty and possibly his life are at stake." Every lawyer knows that in divorce, negligence and insurance cases, perjury is rampant. Plainly, the time has come when Justice must veil her eyes, not that she may be impartial, but in order that she may not behold this public shame.
And yet, although perjury is the commonest of crimes, it is the one least frequently punished. According to the United States Census Report for 1923, the total prison population of the country, State and Federal, was 109,075, of which 16,500 were burglars and only 171 were perjurers. The increasing ineffectiveness and infrequency of prosecutions for
perjury are attested by comparing these figures with the census of 1890, which revealed that out of a total prison population of 82,329, 6410 were burglars and 343 were perjurers. Every lawyer knows all too well that if prosecutions for perjury were as effective and efficient as prosecutions for burglary, the convicted perjurers would far outnumber the convicted burglars.
In the State courts in the County of New York there were but nine convictions after trial for perjury in the fifteen years since 1912, and the same difficulties have been encountered in the Federal courts in the New York district. The sentimental solicitude of the law for an accused person makes conviction especially difficult. The prosecution is obliged to establish a mental fact, -intent to falsify or disregard the truth, beyond a reasonable doubt and in the teeth of a presumption of innocence. The false testimony must be as to a material matter. Counsels for defense plead the frailties of human recollection, understanding and powers of expression. Misapprehension is a ready excuse. Juries dislike to convict where the lying was to save a friend or for some other sentimental reason. The penalties are so severe that charity often prevails over principle.
As a result courts and prosecutors have been loath to proceed against one suspected of perjury; and the crime has come to be surrounded with a practical immunity, if not, according to some social codes, with something almost of glamour. This impunity has given the crime a prodigious vogue. It fattens on legal tolerance, and the consequent lack
of even social odium. Since it causes no loss of caste, we find it present in cases involving those of high social rank. Reputable men will swear falsely to escape jury service, and then denounce the frequency of bad verdicts. They will stick their tongues in their cheeks when verifying a tax return and then decry perjury in the courts. This popular attitude and these not uncommon practices vastly increase the difficulties of prosecution. As long as we have a jury system, the arm of the law will be crippled by public indifferentism to any particular offense.
So true are these considerations, that some students of the crime of perjury, instead of advocating with Justice Black more severe penalties, go to the other extreme and suggest that all penalties be abolished. With such persons a crime is a mere matter of statute, and hence can be abolished by the delightfully simple expedient of abolishing the statute. They argue, with Lord Chesterfield, that "A liar is a fool;" and that on the witness stand he defeats himself. In their view, it is better to follow without exception the Lord's injunction to "Swear not at all," than to swear even in the cause of justice and thereby create the occasion through which offenses come. In effect, they hold with St. Paul that "The strength of sin is the law."
But the law insists on an oath, not for the purpose of tainting falsehood with moral turpitude but to protect the processes of justice. In this age the law regards itself as strong, and faith as weak. The oath is administered because the law desires a solemnity wherewith to give proportion to a grievous penalty, and be